In a third day of Supreme Court hearings those in the room are reporting that swing justice Anthony Kennedy appears to have made up his mind, and that the Affordable Care Act is likely doomed, sources say.
CNN's Jeffrey Toobin is reporting via Twitter that "this entire law is in trouble..." the individual mandate appears: "Doomed"..."seemed a foregone conclusion."
Kaiser Health News correspondent Phill Galewitz tweeted that NBC's Pete Williams is also placing bets: "Pete williams from nbc said thinks 5 judges will strike down entire law and send whole issue back to congress."
The Wall Street Journal blog is reporting very skeptical questioning, with Kennedy and the conservatives pushing the question of what would happen after the mandate fell.
"Justice Kennedy, again exploring the competency theme, says Mr. Kneedler suggests the court has the expertise to invalidate some parts of the law, but not the expertise to judge whether other parts should remain in place. The justice says he finds that 'odd.'"
"Justice Scalia suggests there has never been another high court case where the justices have struck down the “heart” of a law, but left the rest of it in place. Mr. Kneedler says it would be an “extraordinary” move for the court to strike down a huge number of the law’s provisions that have nothing to do with the insurance mandate. ....
Justice Alito echoes those concerns, saying other provisions in the law, in addition to the guaranteed-coverage requirement, could lead to higher costs for insurers. ...."
The Journal blog adds, "Several justices express concern about doing harm to insurance companies if the mandate falls but the rest of the law is left in place. Justice Kennedy worries about imposing a "risk" on insurance companies "that Congress never intended."
WSJ reports that the Plaintiff's attorney Paul Clement insisted the law must fall if the mandate falls:
"Mr. Clement said in his rebuttal: “You need look no further than the title of the statute” to know it all must fall. Without the individual mandate, the “principal tool,” the Patient Protection and Affordable Care Act can accomplish neither.
He recalled the experience with the 1976 campaign case, Buckley v. Valeo, which struck down limits on political expenditures but upheld restrictions on political contributions. That ruling has proven problematic, creating a “halfway house” of horrors for Congress. He urged the court to simply pave over the entire structure of the Affordable Care Act, so Congress could build something new, or nothing at all."
There was at least one dissenting voice, however. Lyle Denniston at SCOTUS Blog actually read the justice's preoccupation with what would happen to the law if the mandate thrown out to indicate that skepticism had set in about striking the mandate down. "A common reaction, across the bench," Denniston wrote, "was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself."
Eric Schulzke writes on national politics for the Deseret News. He can be contacted at [email protected].